Now That the Dust Has Settled, What is the Impact of the Winn-Dixie Decision?
Quick Background on Winn-Dixie
Few decisions have caused as much drama in web accessibility as Gil v. Winn-Dixie. Back in 2017, Judge Robert Scola from the Southern District of Florida issued his opinion finding that the Winn-Dixie had discriminated against Juan Carlos Gil by making its website inaccessible to assistive technology used by Mr. Gil and other blind individuals. This made it impossible for Mr. Gil to refill his prescriptions online and forced Mr. Gil to spend extra time at his local Winn-Dixie pharmacy waiting for his refills. Mr. Gil also could not access Winn-Dixie’s online coupons and Mr. Gil had to resort to cajoling other customers to read physical coupons to him when he visited a Winn-Dixie store.
Winn-Dixie was unhappy with this opinion and appealed to the 11th Circuit Court of Appeals. In a stunning decision, a three-judge panel of the Eleventh Circuit reversed the district court and held that, unless some element of a website acted to prevent access to goods or services at a physical Winn-Dixie store, a plaintiff cannot sue a company based on the inaccessibility of its website. The panel was unmoved by the fact that blind individuals like Mr. Gil were singled out to suffer humiliation and waste hours at Winn-Dixie stores.
Then it was the plaintiffs who were unhappy with the court’s opinion and so they filed for a rehearing en banc, asking that the appeal be heard and decided by the entire Eleventh Circuit instead of a three-judge panel. This appeal, which was supported by several national disability groups, must have caused a few heated conversations behind closed doors, because the 11th Circuit then vacated the opinion of the three-judge panel on the flimsy pretext that the case was moot because Winn-Dixie had ultimately made its website accessible.
In the wake of this drama in the Court of Appeals, the whole 11th Circuit has been a confusing mess. Immediately after the three-judge panel decision, new filings for web accessibility cases in the Southern District of Florida dropped to zero and courts in the Eleventh Circuit have struggled to come up with clear guidance on what constitutes web accessibility discrimination.
Baby Steps After Winn-Dixie: Ariza v. Broward Design Ctr., Inc.
Any district court in the 11th Circuit would be understandably reluctant to rule on a web accessibility case knowing that it was such a hot button topic to an appellate court scrutinizing its decisions. This was the position that the district court faced this month in Ariza v. Broward Design Center, Inc., 2022 U.S. Dist. LEXIS 192421 (S.D. Fla. 2022).
First, the court considered how much weight to give the opinion of the three-judge panel. Normally, the practical effect of vacating an opinion is that the vacated opinion had simply never happened. The court didn’t go quite that far, holding that, “the Court can still consider the vacated opinion … if it finds it persuasive.” Id, at *5. To me, this seems like a deferential way of saying that they could treat the panel decision as if it never happened.
Next, the court tried to identify when barriers on a website gives rise to liability under the ADA. Because this means applying the nexus standard, this is where the wheels started to fall off the truck. The key issue, according to the court, was “whether Plaintiff's Complaint sufficiently alleges that Defendant's Website creates an intangible barrier that excludes Plaintiff from accessing the goods, services, privileges, or advantages of Defendant's physical store.” This is a pretty high standard and excludes anything that doesn’t occur in a physical store. Yet, a number of the examples cited by the court (such as finding a nearby store, applying for credit, making online purchases, or communicating with the stores) are quite remote from goods, services, privileges, or advantages of a physical store. As I’ve blogged about before, this is the essential problem with the nexus standard—apart from excluding purely online-only companies, whether a company’s website is covered by the ADA is uncertain and all in the eye of the beholder.
What Will Future Web Accessibility Decisions in the Southern District of Florida Look Like?
Looking into my crystal ball, I think that future web accessibility decisions will look a lot like the Ariza decision. They will all start by dancing gingerly around Winn-Dixie and pay lip service to the Eleventh Circuit. Then, they will be decided on the personal inclination of the judge. A conservative judge will likely use the phrase "intangible barrier" in a strict sense and rule against a plaintiff who could still physically access a place of public accommodation even though their website was a mess. A more liberal judge could read the same language more expansively and allow plaintiffs to sue over less obvious advantages and benefits that are available only through an (inaccessible) website. In short, web accessibility in the Southern District of Florida will be a mess-- just like it is in every other jurisdiction that still adheres to the ridiculous nexus approach.
More and More Cases Settling with Consent Decrees
Over the last two or three months, I've noticed that a lot more cases are settling with consent decrees than ordinary settlements. Over two years ago, I mentioned Fernandez v. Dolce & Gabbana USA Inc., 2020 U.S. Dist LEXIS 28182 (S.D. Fla. 2020)-- and some of the benefits of settling with a comprehensive consent decree for avoiding multiple web accessibility lawsuits. Of course, I can't tell you exactly why defendants are increasingly turning to consent decrees but I suspect res judicata has a lot to do with it.
Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.
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